for publicationcdn.ca9.uscourts.gov/datastore/opinions/2007/07/03/0510543.pdfgonzalez was indicted...

FOR PUBLICATION

UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 05-10543Plaintiff-Appellee,D.C. No.v. CR-03-00498-LDG

SALVADOR GONZALEZ, OPINIONDefendant-Appellant. Appeal from the United States District Court

for the District of NevadaLloyd D. George, District Judge, Presiding

Argued and SubmittedNovember 16, 2006—San Francisco, California

Filed July 3, 2007

Before: A. Wallace Tashima and M. Margaret McKeown,Circuit Judges, and David A. Ezra,* District Judge.

Opinion by Judge McKeown;Dissent by Judge Tashima

*The Honorable David A. Ezra, United States District Judge for theDistrict of Hawaii, sitting by designation.

7949

COUNSEL

Daniel G. Bogden, United States Attorney; Robert L. Ellman,Chief, Appellate Division; Thomas S. Dougherty, AssistantUnited States Attorney, Las Vegas, Nevada, for thedefendant-appellant.

Franny A. Forsman, Federal Public Defender; Jason F. Carr,Assistant Federal Public Defender, Las Vegas, Nevada, forthe plaintiff-appellee.

7952 UNITED STATES v. GONZALEZ

OPINION

McKEOWN, Circuit Judge:

Southwest Airlines Flight 2466, bound for Ontario, Califor-nia, from Las Vegas, Nevada, had an uneventful takeoff.Before long, the cabin was in total chaos. Passenger SalvadorGonzalez became hysterical, demanded that the plane land,made statements about a bomb and, according to a flightattendant, said, “I’m blowing the plane up.” The crew andpassengers tried to subdue him. He eventually was handcuffedand the plane was diverted back to Las Vegas.

Gonzalez pled guilty to interference with a flight crewmember in violation of 49 U.S.C. § 46504. He appeals thedistrict court’s decision to impose a nine-level sentencingenhancement for reckless endangerment of the aircraft underthe advisory United States Sentencing Guidelines(“Guidelines”). We are unpersuaded by Gonzalez’s argumentthat the enhancement is inapplicable. His conduct was a threatnot only to crew and passengers but to the aircraft.

BACKGROUND

Shortly after take-off, Gonzalez, who was seated in the lastrow of the airplane, stood up, complained of heart problems,and requested oxygen from a flight attendant. Flight attendantPatrick Poulin informed Gonzalez that the captain would benotified and oxygen would be made available, but Gonzalezrefused to sit down and walked up the aisle, demanding thatthe plane land.

Just as Poulin was retrieving an oxygen tank, flight atten-dant Nancy Castillo noticed Gonzalez in the aisle and thoughthe might need medical attention. As she approached, Gonza-lez said that he was having a heart attack. Castillo tried tocalm him down, but Gonzalez continued toward the front of

7953UNITED STATES v. GONZALEZ

the plane, claiming that he needed a forward seat and askingthat the plane, which had just taken off, land.

Gonzalez became increasingly agitated, saying: “We haveto get on the ground. We need to land. I need to get this air-craft on the ground.” To Castillo, Gonzalez appeared “veryangry,” and “very upset.” Gonzalez then began opening over-head bins and attempted to take out the luggage. Castilloheard him say, “I have a bomb,” and she ran up the aisle toinform the captain, who indicated that the plane would returnto Las Vegas.

According to Castillo:

The cabin was total chaos, everybody — the — rightat the point when he had said “I have [a] bomb,” Isaw many of our male passengers unbuckle theirseatbelts and they stood up and they — I rememberseeing the people throwing punches and everybody,you know, they were all on top of Mr. Gonzalez. . . .[Gonzalez] was hysterical and he was swinging andkicking and he was just — he was hitting and kick-ing passengers and the passengers were trying totake him down and hold him down.

Castillo added that passengers were concerned Gonzalezwould open the emergency exit door:

Many of the female passengers were screaming andyelling and crying. The cabin was total chaos. Theywere yelling, “We’re going to die. We’re going tocrash. We’re going down.” And a lot of the womenwere hysterical. They were — they were thinking wewere going to crash. Thinking they — when the pas-sengers heard Mr. Gonzalez say, “I have a bomb,”and at that point it was just all hell broke loose.

Castillo recalled that as Gonzalez made his way toward theemergency exit row, women were screaming and saying,


“He’s going to open up the door.” Castillo, who was “veryafraid,” noted that the passengers were crying because theythought that if Gonzalez opened the emergency door, the air-craft was going down.

When Gonzalez began opening the overhead bins, anotherflight attendant, Kyle Woodard, who was on board but wasnot working the flight, became concerned. Woodard got up tosee what was going on, and heard Poulin assuring Gonzalezthat the plane was turning around to land in Las Vegas. Woo-dard heard Gonzalez say “something to the effect of, do Ihave to say I have a bomb to get this plane on the ground?Gonzalez went on to say, ‘I can blow this plane up.’ ”Poulin’s statement to the FBI was in accord with Woodard’sversion of events.

In the midst of the chaos, Woodard and Poulin tried torestrain Gonzalez by grabbing his arms. Woodard describedthe following interchange with Gonzalez:

[Gonzalez] was — he looked at Patrick [Poulin] andlooked at me, he said he — I have a [unintelligible]you’re going to kill me or something. At that time Itold him, I said, well, then let’s calm down, we’regoing to let you go, let’s, you know, bring this down,and he — we both released him and he said, “I wantthis plane on the ground.” Patrick’s saying, “Sir,we’re going back to Vegas.” And then finally he saidsomething to the effect of, you know, f--- it, I’mblowing the plane up, I’m taking it down.

In response to a question whether Gonzalez “was going totake the plane down,” Woodard testified, “I was afraid that hehad a device or something [and that] it was going to do harmto myself and my crew and my passengers, yes.”

Gonzalez then opened an overhead bin and began pullingout a bag, which set off a struggle during which Gonzalez


kicked Poulin. Several passengers assisted Poulin and Woo-dard in an attempt to restrain Gonzalez. During the course ofthis struggle he “hit several passengers with his arms andlegs” and was “kicking everybody.” Flight attendants and pas-sengers were ultimately able to restrain Gonzalez with plastichandcuffs.

The plane was diverted and it returned to Las Vegas with-out further incident. FBI agents arrested Gonzalez, who toldthem that “he knew what he was doing was wrong but felt hehad to do something to land the plane.” At the change of pleahearing, Gonzalez acknowledged that, although he had usedmethamphetamine the day before the incident, he was awareof his actions and understood and knew what he was doing atthe time of the incident. The precise statement that Gonzalezmade about the bomb is in dispute. In the change of plea hear-ing, Gonzalez denied making the specific statement “I have abomb,” but admitted to stating, “what do I have to do to getthis plane to land? Do I have to say I have a bomb?”

Gonzalez was indicted on one count of interference with aflight crew member in violation of 49 U.S.C. § 46504. To vio-late § 46504, a defendant’s conduct of “assaulting or intimi-dating a flight crew member or flight attendant” must“interfere[ ] with the performance of the duties of the memberor attendant or lessen[ ] the ability of the member or attendantto perform those duties.” 49 U.S.C. § 46504. Although Gon-zalez initially entered a plea of not guilty, he later changed hisplea to guilty.

The Presentence Investigation Report (“PSR”) recom-mended a nine-point base offense level enhancement (from 9to 18) under United States Sentencing Guidelines§ 2A5.2(a)(2) on the ground that Gonzalez recklessly endan-gered the safety of the aircraft. During the sentencing hearing,which took place over several sessions, the court heard testi-mony from flight attendants Nancy Castillo and Kyle Woo-


dard. Gonzalez disputed the claim that he had recklesslyendangered the safety of an aircraft.

At the final hearing, the district court reviewed the proce-dural history of the case, summarized the parties’ respectivepositions concerning the sentencing issues and reviewed theGuidelines calculations. The district judge stated, “[t]he courthas considered all of the factors and the advisory guidelinesin my judgment are twenty-one (21) to twenty-seven (27)months. I will impose a 27-month sentence on the defendant.I will require him to be supervised for three (3) years, and topay the one hundred dollar ($100) special assessment.” Thedistrict court did not apply the two-level enhancement forobstruction of justice but gave Gonzalez the benefit of a two-level downward adjustment for acceptance of responsibility.The district court also specified that the offense level was 16,meaning that it had applied the nine-level enhancement.

ANALYSIS

The central issue on appeal is whether the nine-levelGuideline enhancement for recklessly endangering the safetyof an aircraft is applicable to Gonzalez’s conduct. In addition,although he did not raise the standard of proof issue below,Gonzalez claims that reversal is warranted because theenhancement must be proven by clear and convincing evi-dence.

I. HISTORY OF U.S.S.G. § 2A5.2(a)(2)

Before the enactment of the Uniting and StrengtheningAmerica by Providing Appropriate Tools Required to Inter-cept and Obstruct Terrorism Act of 2001 (“USA PATRIOTAct”), Pub. L. No. 107-56, 115 Stat. 272 (2001),§ 2A5.2(a)(2) referred to recklessly endangering the safety ofthe “aircraft and passengers.” U.S.S.G. § 2A5.2(a)(2) (2001)(emphasis added). Effective November 1, 2002, § 2A5.2(a)(2)was amended to refer to “endangering the safety of . . . an air-


port or an aircraft; or . . . a mass transportation facility, a masstransportation vehicle, or a ferry.” U.S.S.G. § 2A5.2(a)(2)(2003).

The USA PATRIOT Act also led to the addition of a newsubsection, § 2A5.2(b), relating to the use of dangerous weap-ons. According to the United States Sentencing Commission’sstated reasons for the amendment, § 2A5.2(b) was added to“address[ ] concerns that the current base offense level of 18(in § 2A5.2(a)(2)) for reckless endangerment may be inade-quate in situations involving a dangerous weapon and recklessdisregard for the safety of human life.” U.S.S.G. Supp. toAppend. C, amend. 637, at 247 (2002). Another new subsec-tion, § 2A5.2(c), was added to “cross reference . . . the appro-priate homicide guideline . . . for offenses in which deathresults.” Id.

The overall effect of these amendments, taken together, istwo-fold. First, it is now easier to invoke the sentenceenhancements because § 2A5.2(a)(2) does not require a show-ing of endangerment to the passengers. For example, even ifan individual threatened to blow up an empty aircraft, hecould receive an enhancement under § 2A5.2(a)(2). And, inthe case of an aircraft loaded with passengers, Congress rea-sonably assumed, as would most people, that endangering anaircraft would endanger the passengers. Second, to the extentreckless endangerment involves dangerous weapons or resultsin death, the overall penalties are now higher.

II. APPLICATION OF THE ADJUSTMENT UNDER U.S.S.G.§ 2A5.2(a)(2)1

1Gonzalez’s related argument that the sentence was unreasonable ispremised on the contention that the district court improperly invoked theenhancement. We need not address this issue in light of our conclusionthat Gonzalez’s conduct falls within the range of conduct contemplated bythe enhancement.


[1] The adjustment under § 2A5.2(a)(2) applies “if theoffense involved recklessly endangering the safety of . . . anaircraft.” U.S.S.G. § 2A5.2(a)(2). Gonzalez argues that the“crucial legal fulcrum,” as he terms it, is whether he reck-lessly endangered the actual aircraft and that while he mayhave interfered with the crew and arguably even endangeredpassengers, the adjustment is inapplicable because he did notendanger an aircraft. In sum, he claims that he endangeredonly the flight crew and passengers, not the aircraft.

To the extent Gonzalez’s point is that the adjustmentrequires conduct beyond the underlying offense, he is correct.Simply interfering with the flight crew is insufficient to war-rant the nine-level enhancement. But Gonzalez’s ultimateargument fails for two reasons: first, endangerment of the air-craft does not require evidence of actual harm to the aircraft;and second, Gonzalez’s irresponsible statements, threats andconduct easily qualified as reckless endangerment to “thesafety of . . . an aircraft” within the meaning of § 2A5.2(a)(2).

Turning to the first argument, not surprisingly, Gonzalezpoints to no case that requires evidence of actual harm to theaircraft under § 2A5.2(a)(2). Common sense tells us that adefendant can endanger something without causing actualharm. See, e.g., Price v. United States Navy, 39 F.3d 1011,1019 (9th Cir. 1994) (“Courts have . . . consistently held that‘endangerment’ means a threatened or potential harm anddoes not require proof of actual harm.”) (Resource Conserva-tion and Recovery Act) (citations omitted); Ethyl Corp. v.EPA, 541 F.2d 1, 13 (D.C. Cir. 1976) (“Case law and dictio-nary definition agree that endanger means something less thanactual harm.”) (Clean Air Act).

Nothing suggests that this commonly-accepted meaningshould not apply here. In a closely analogous situation, thedistrict court explained:

Defendant urges this court . . . to find that2A5.2(a)(2) applies only if there is actual harm to the


aircraft and passengers. Such a construction wouldmean that this Base Offense Level would apply onlywhen an aircraft actually crashed or suffered otherdamage as a result of a defendant’s action. Had thisbeen the intended meaning, the term ‘harming’would have been more appropriate than endangering,which means ‘putting someone or something in dan-ger; exposing to peril or harm.’

United States v. Guerrero, 193 F. Supp. 2d 607, 608(E.D.N.Y. 2002) (quoting Black’s Law Dictionary 547 (7thed. 1999)).

[2] Recognizing that actual harm to the aircraft is notrequired for behavior to constitute endangerment, we nextconsider the contours of “recklessly endangering the safety of. . . an aircraft.” Section 2A5.2 does not define “reckless.”However, Application Note 1 to U.S.S.G. § 2A1.4 defines theterm “reckless” in the context of involuntary manslaughter asa situation in which the defendant “was aware of the risk cre-ated by his conduct and the risk was of such a nature anddegree that to disregard that risk constituted a gross deviationfrom the standard of care that a reasonable person would exer-cise in such a situation.” U.S.S.G. § 2A1.4, app. n.1. Weadopted this definition in United States v. Naghani, 361 F.3d1255, 1263 (9th Cir. 2004), a case that raised similar issuesinvolving reckless endangerment of an aircraft.

In Naghani, the defendant entered the aircraft lavatory andlit a cigarette, which set off a smoke alarm. When confronted,he argued with a flight attendant and threatened to “kill allAmericans.” Id. at 1260. Although Naghani denied makingthis statement or refusing to cooperate, the jury convicted himof interfering with the duties of a flight crew in violation of49 U.S.C. § 46504. The district court imposed the enhance-ment under § 2A5.2(a)(2). In upholding the enhancement, weobserved:


The district court found that Naghani had acted reck-lessly based on the entire course of Naghani’salleged conduct. The district court properly foundthat Naghani was aware of the risk created by hissmoking, obstreperous behavior and threats, and thatsuch conduct constituted a gross deviation from astandard of ordinary care. Naghani should have beenaware that his behavior would divert the flight atten-dants’ attention from their duties and require theirpresence. If an actual emergency had arisen atanother part of the plane, the distraction would havedelayed, and perhaps prevented, an effectiveresponse by the flight attendants.

Id. at 1263 (emphasis added).2

The Tenth Circuit’s treatment of § 2A5.2(a)(2) is consistentwith our analysis. See United States v. Jenny, 7 F.3d 953(10th Cir. 1993). In Jenny, the defendant was convicted ofintimidating a flight crew under 49 U.S.C. § 1472(j), the pre-decessor statute to 49 U.S.C. § 46504. The district courtapplied a base offense level of 18 under § 2A5.2(a)(2). Id. at954. Jenny cursed at the flight attendant and other passengers,made sexually suggestive remarks and gestures, grabbed afemale flight attendant’s breast and a female passenger’s arm,and approached the cockpit area and sat in the flight atten-dant’s jump seat, among other things. Id. at 954-55. The cap-tain was forced to make an unscheduled landing due to

2We cannot embrace the dissent’s suggestion that Naghani is “not bind-ing because the court [in Naghani] did not consider the meaning of ‘air-craft’ or what level of interference satisfied the Guideline,” or that itsanalysis is dicta. Dissenting op. at 7971-72. Naghani squarely addressedthe question presented here—i.e., whether the district court’s applicationof § 2A5.2(a)(2) was an abuse of discretion. Under the Guidelines in effectat sentencing, the government was required to show that Naghani hadendangered both “the aircraft and passengers.” See U.S.S.G. § 2A5.2(a)(2)(2001). That the court did not parse the meaning of aircraft or that its anal-ysis relating to § 2A5.2 was brief, does not render its conclusion dicta.


Jenny’s conduct. Id. at 955. The court affirmed the sentencingenhancement under § 2A5.2(a)(2), holding that Jenny “actedwith an awareness to forseeable consequence.” Id. at 957.

Two district court cases are also particularly instructive. InGuerrero, the court held that the enhancement applied whenan intoxicated passenger was so unruly that the captain con-cluded that he must return to John F. Kennedy InternationalAirport rather than continue on to Santo Domingo, DominicanRepublic. 193 F. Supp. 2d at 609-10. The passenger’s behav-ior included shoving, hitting, sexual touching, and threats thathe was going to kill everyone on the aircraft. Id. at 610. Thepilot left his duties in the cockpit to deal with the passenger,and the aircraft had to be turned around and returned to NewYork.3 Id. The court held that these actions exposed the air-craft and passengers to harm within the meaning of the Guide-lines.

In the second case, United States v. Spellman, 243 F. Supp.2d 285 (E.D. Pa. 2003), the court held that it could haveapplied the reckless endangerment enhancement, but did notdo so because the parties had stipulated to a base offense levelof nine. Id. at 295 n.19. During the flight, Alonzo Spellman,a former defensive end for the Chicago Bears, was extremelyabusive and threatening to the flight attendants and fellowpassengers, and made comments like, “I hope we make it toPhiladelphia before this plane crashes into a building.” Id. at287. He also “talked out loud about opening the door whilein flight” and said to the flight crew, “Give me a parachuteand I’ll jump off this plane.” Id. After multiple failed attemptsby the captain, flight attendants and passengers to restrain

3Of course it is not necessary for the pilot to leave the cockpit to addressa crisis, thus diverting his attention. Here, the pilot’s ordinary flight rou-tine was seriously disrupted when an alarmed flight attendant alerted himto the bomb threats and the fracas in the cabin. Given the increased secur-ity measures and policies in effect post-9/11, it may well have been impru-dent for the pilot to have left the cockpit under the circumstances.


Spellman, the pilot requested a priority handling that allowedthe plane to land early at the Philadelphia airport. See id. at288. The district court found that Spellman created an atmo-sphere of “pervasive terror.” Id. at 294. As the court summa-rized:

In typical prosecutions under Sections 1472(j) and46504, the defendants insult, physically harass, andin some cases even threaten to kill flight personnel.However, it is the rare case in which passengersexperience the degree of fear and intimidation thatSpellman instilled in so many of his fellow passen-gers. Indeed, we found few cases in which the pas-sengers had serious grounds to worry that theoffender would actually bring down the plane.

Id. at 293 & n.13 (collecting cases) (emphasis added).

[3] As these cases illustrate, diversion of the aircraft,behavior that instills fear and terror in the other passengers orthe flight crew, and threats that could result in harm to the air-craft are sufficient, depending on the combination of circum-stances, to constitute reckless endangerment of the safety ofthe aircraft. Gonzalez’s conduct encompassed these risks andmore.

[4] To be sure, simply disrupting the flight attendants andcausing other passengers discomfort does not rise to the levelof reckless endangerment. But Gonzalez’s statements aboutthe bomb were no joking matter. Surely threats about a bomb—whether couched in terms of “do I have to say I have abomb?” or “I’m blowing the plane up, I’m taking it down”—go beyond interference with the flight crew’s performance ofduties and constitute “a gross deviation from the standard ofcare that a reasonable person would exercise in such a situa-tion.” U.S.S.G. § 2A1.4, app. n.1. The passengers were yell-ing, “[w]e’re going to crash. We’re going down.” The air of


terror created by Gonzalez, who candidly admitted he knewwhat he was doing, was reckless in the extreme.

[5] Gonzalez’s argument that his conduct—whatever itsimpact on the flight crew and passengers—does not amountto endangerment of the aircraft, misses the mark because hisconduct endangered both the people and the aircraft itself. Anaircraft is a captive, closed environment in which the safetyof the passengers and the integrity of the aircraft are closelyintertwined. It doesn’t take an aeronautical engineer to recog-nize that a threat of a bomb in that environment and the havocthat such a threat might cause is a threat to the safety of theaircraft. Nowhere in § 2A5.2(a)(2) is there a requirement thatan actual weapon or bomb be found on the plane. Such a nar-row interpretation would remove highly reckless and threaten-ing conduct from the ambit of § 2A5.2(a)(2), a result thatmakes no common sense.

[6] And finally, as occurred in both Guerrero and Spell-man, Gonzalez’s conduct precipitated an emergency diversionof the aircraft and a return to Las Vegas. This diversion wasyet another risk to the aircraft caused by Gonzalez’s escalat-ing terror.4

The chaos engendered by Gonzalez goes far beyond hischaracterization of a threat solely to the safety of the crew andpassengers. Their ultimate safety is inextricably bound withthe safety of the aircraft but we need not decide whether a

4The dissent’s statement that “the more reasonable inference [regardingthe aircraft’s diversion] would seem to be that . . . the pilot concluded thatit would be safer to return to Las Vegas, rather than continue on toOntario, California,” dissenting op. at 7971, can only be described as alogical fallacy. The pilot apparently considered a diversion of the aircraftback to Las Vegas, even under emergency, distress situations, to be saferthan proceeding to Ontario once Gonzalez threatened to bring down theplane. But such diversion was certainly not safer than the normal operationof the flight to Ontario in the absence of Gonzalez’s disruptive behaviorand threats.


threat solely to the passengers would be sufficient to invokethe enhancement. Gonzalez recklessly endangered the aircraftitself. He does not present the case of a drunken passengerwho tips over the drink cart, harasses a flight attendant, threat-ens a passenger, or is simply obstreperous. The enhancementrequires more and Gonzalez’s behavior easily falls within thecontours of “recklessly endangering the safety of . . . an air-craft.” U.S.S.G. § 2A5.2(a)(2).

III. STANDARD OF PROOF FOR RECKLESS ENDANGERMENT

Section 2A5.2 provides for a base offense level of nine forthe statute of conviction, 49 U.S.C. § 46504. U.S.S.G.§ 2A5.2(a)(4). However, “if the offense involved recklesslyendangering the safety of . . . an aircraft,” the base offenselevel is 18. U.S.S.G. § 2A5.2(a)(2). Gonzalez argues that theenhancement must be supported by clear and convincing evi-dence.

[7] As a general rule, the party seeking to adjust an offenselevel must establish by a preponderance of the evidence thatthe adjustment is merited. See United States v. Charlesworth,217 F.3d 1155, 1158 (9th Cir. 2000). However, a sentencingfactor that has “an extremely disproportionate effect on thesentence relative to the offense of conviction” may require adistrict court to find that factor by clear and convincing evi-dence, rather than by a preponderance of the evidence. SeeUnited States v. Munoz, 233 F.3d at 1117, 1127 (9th Cir. 2000).5

Although we conclude that the heightened standard isappropriate here, we review for plain error because Gonzalezdid not raise this argument before the district court. UnitedStates v. Bahe, 201 F.3d 1124, 1127 (9th Cir. 2000). “Plainerror is found only where there is (1) error, (2) that was clear

5Post-Booker, these same standards remain applicable. See UnitedStates v. Kilby, 443 F.3d 1135, 1140-41 & n.1 (9th Cir. 2006); see alsoUnited States v. Staten, 466 F.3d 708, 717 (9th Cir. 2006).


or obvious, (3) that affected substantial rights, and (4) thatseriously affected the fairness, integrity, or public reputationof the judicial proceedings.” Id. (citation and quotation marksomitted); see United States v. Jordan, 256 F.3d 922, 926 (9thCir. 2001) (applying plain error standard to a case wheredefendant failed to object to application of preponderance ofthe evidence standard at sentencing).

[8] To assess whether the heightened standard of proofapplies, we review the totality of the circumstances, UnitedStates v. Dare, 425 F.3d 634, 642 (9th Cir. 2005), includingthe following factors:

1. Does the enhanced sentence fall within the max-imum sentence for the crime alleged in theindictment?

2. Does the enhanced sentence negate the pre-sumption of innocence or the prosecution’s bur-den of proof for the crime alleged in theindictment?

3. Do the facts offered in support of the enhance-ment create new offenses requiring separatepunishment?

4. Is the increase in sentence based on the extent ofa conspiracy?

5. Is the increase in the number of offense levelsless than or equal to four?

6. Is the length of the enhanced sentence more thandouble the length of the sentence authorized bythe initial sentencing guideline range in a casewhere the defendant would otherwise havereceived a relatively short sentence?


United States v. Johansson, 249 F.3d 848, 854 (9th Cir. 2001)(citation omitted) (quoting United States v. Valensia, 222 F.3d1173, 1182 (9th Cir. 2000), cert. granted and judgmentvacated on other grounds, 532 U.S. 901 (2001)). No singlefactor is controlling. Dare, 425 F.3d at 642.

[9] Although the first four factors are either not particularlyrelevant or do not weigh in favor of a heightened standard, thelast two factors are significant. In Jordan we concluded thata nine-level enhancement, which we have here, “strongly sup-ports application of the clear and convincing evidence stan-dard.” Jordan, 256 F.3d at 929. The offense level increase,the fifth factor, weighs heavily in favor of a heightened bur-den. The sixth factor, whether the length of the enhanced sen-tence is more than double the length of the sentenceauthorized by the initial Guideline range in a case where thedefendant would otherwise have received a relatively shortsentence, likewise counts in Gonzalez’s favor. The nine-levelenhancement raised the applicable Guideline range from zeroto six months (where probation is a viable option) to 21 to 27months, which is more than four times the upper end of theGuideline range.

[10] We have previously invoked the clear and convincingevidence standard where only the two final factors favor itsapplication, and nothing suggests that we should take a differ-ent approach here. See Jordan, 256 F.3d at 929 (holding thatheightened standard should have been applied when the sen-tence was more than doubled). See also id. at 934(O’Scannlain, J., concurring) (“Since Hopper, we appear tohave consistently held that when the enhancement is greaterthan four levels and more than doubles the applicable sentenc-ing range, then the enhancements must be proved under the‘clear and convincing’ standard of proof.” (collecting cases)).

[11] The district court did not specify the standard of proofnor did Gonzalez’s counsel raise the issue. Gonzalez is notentitled to reversal, however, simply because the district court


should have applied the clear and convincing standard. Thefailure to articulate the standard did not prejudice Gonzalez.As we explained in Jordan:

An error that is plain must also ‘affect substantialrights.’ In most cases this language means that ‘theerror must have been prejudicial: It must haveaffected the outcome of the district court proceed-ings.’ . . . Jordan therefore must make a specificshowing of prejudice to satisfy this prong. However,it is evident beyond doubt that Jordan’s increasedincarceration caused by the challenged enhance-ments is prejudicial if these enhancements could nothave been proved by clear and convincing evidence.

256 F.3d at 930 (emphasis added). See also United States v.Technic Servs., 314 F.3d 1031, 1046 (9th Cir. 2002) (holdingon plain error review that the record reflected the court foundthe enhancements by clear and convincing evidence, based oncertain statements the judge made).

[12] Because the evidence in this case was overwhelming,it is evident that the facts related to the enhancement wereestablished by clear and convincing evidence. The disputeover Gonzalez’s language with respect to the bomb does notchange the calculus. Even accepting Gonzalez’s version, cou-pled with the uncontroverted testimony of the flight attendantsand other aspects of Gonzalez’s behavior, the standard is eas-ily met.

AFFIRMED.

TASHIMA, Circuit Judge, dissenting:

Gonzalez was convicted, on a plea of guilty, of one countof interference with a flight crew member in violation of 49


U.S.C. § 46504. Accepting the recommendation of the Proba-tion Officer, the district court doubled Gonzalez’s baseoffense level — from level 9 to level 18 — for recklesslyendangering the safety of the aircraft under U.S.S.G.§ 2A5.2(a)(2) without making any specific finding of fact thatthe safety of the aircraft was, indeed, endangered. Because Idisagree that this enhancement is applicable in this case, Irespectfully dissent.

Even reading the sentencing record and all of the materialsavailable to the district court at sentencing in the light mostfavorable to upholding the sentence, the record does not comeclose to establishing that Gonzalez posed any threat to the air-craft in this case. Based on the plain meaning of§ 2A5.2(a)(2), whether or not Gonzalez’s conduct threatenedthe flight attendants and passengers is a separate question, towhich this enhancement does not speak. The majority mis-takenly conflates the two concepts — threat or endangermentof a flight attendant and endangerment of the aircraft. Accep-tance of the majority’s reasoning would render the enhance-ment under § 2A5.2(a)(2) applicable to virtually every casefor violation of 49 U.S.C. § 46504. This is contrary to theGuideline’s unambiguous language and the clear intent of theSentencing Commission.

“This Court applies the rules of statutory construction wheninterpreting the Sentencing Guidelines. . . . If the language ofa statute is unambiguous, the plain meaning controls.” UnitedStates v. Robinson, 94 F.3d 1325, 1328 (9th Cir. 1996); seealso United States v. Carter, 421 F.3d 909, 911-12 (9th Cir.2005) (examining the meaning of U.S.S.G. § 2K2.1(b)(4)according to the rules of statutory construction). In assessingplain meaning, “ ‘unless otherwise defined, words will beinterpreted as taking their ordinary, contemporary, commonmeaning.’ ” Carter, 421 F.3d at 911 (quoting Perrin v. UnitedStates, 444 U.S. 37, 42 (1979)).

As applicable here, § 2A5.2(a)(2) calls for an enhancement“if the offense [of interference with a flight crew member or


flight attendant] involved recklessly endangering the safety of. . . an airport or an aircraft.” U.S.S.G. § 2A5.2(a)(2)(emphasis added). To take a typical definition, an “aircraft” is“a weight-carrying machine or structure for flight in or navi-gation of the air.” Webster’s Third New International Dictio-nary (Unabridged) 46 (2002).

The majority improperly disregards the plain meaning of“aircraft” and includes “flight attendants and passengers”within the meaning of “aircraft.”1 Under the majority’s read-ing, no risk or endangerment to the aircraft itself or any of itscomponents need be present in order for § 2A5.2(a)(2) toapply. The facts in this case vividly illustrate why the majori-ty’s interpretation of the Guideline is untenable, notwithstand-ing its unsupported and bald assertion that “Gonzalez’sirresponsible statements, threats and conduct easily qualifiedas reckless endangerment to ‘the safety of . . . an aircraft’within the meaning of § 2A5.2(a)(2).” Maj. op. at 7959.2

In this case, there was no bomb on the plane, and there isno evidence that Gonzalez’s empty (and empty-handed), pan-icked threat endangered the safety of the machine or structurecomposing the “aircraft.” Contrary to the majority’s sugges-tion, the fact that flight attendants and passengers were dis-

1The majority concludes that “endangerment of the aircraft does notrequire evidence of actual harm to the aircraft.” Maj. op. at 7959 (empha-sis in original). I do not dispute the majority’s point that one can endangeran object without causing it actual harm. See Price v. United States Navy,39 F.3d 1011, 1019 (9th Cir. 1994); Ethyl Corp. v. EPA, 541 F.2d 1, 13(D.C. Cir. 1976). However, the object of the endangerment under U.S.S.G.§ 2A5.2(a)(2) must still be the aircraft, meaning the machine involved, asopposed to the flight attendants, which was not shown in this case.

2The burden of proof is on the party seeking to adjust an offense levelto establish by a preponderance of the evidence that the adjustment is mer-ited. United States v. Charlesworth, 217 F.3d 1155, 1157-58 (9th Cir.2000); United States v. Barnes, 993 F.2d 680, 683 (9th Cir. 1993). Havingfailed to make an adequate record at sentencing, as discussed below, thegovernment clearly did not meet its burden here, contrary to the holdingof the majority.


turbed, even panicked, and the plane was turned around isinsufficient to meet the Guideline.3 There was no evidencepresented in this case, through testimony from the pilot orotherwise, that the pilot’s ability effectively to operate theplane was inhibited, or that the diversion caused any risk toaircraft safety. Also lacking any evidence that the return ofthe aircraft to Las Vegas precipitated any danger, moreover,this case is distinguishable from the cases upon which themajority relies.4

Most importantly, the majority improperly relies on UnitedStates v. Naghani, 361 F.3d 1255 (9th Cir. 2004). Contrary tothe majority, I do not believe that Naghani controls and I con-clude that what constitutes endangerment of the aircraft is anopen question. First, Naghani is not binding because the courtdid not consider the meaning of “aircraft” or what level of

3The majority asserts that the “diversion of the aircraft and a return toLas Vegas” “was yet another risk to the aircraft caused by Gonzalez’sescalating terror.” Maj. op. at 7964. But the majority does not explain howthis decision and maneuver endangered the aircraft, unless returning toLas Vegas is, for some unexplained reason, more dangerous to aircraftsafety than continuing on to Ontario, California. Absent a further explana-tion, and there is none in the record, the more reasonable inference wouldseem to be that, because this incident happened “[s]hortly after take-off,”Maj. op. at 7953, the pilot concluded that it would be safer to return to LasVegas, rather than to continue on to Ontario. In any event, the majority’sweak retort that “such diversion was certainly not safer than the normaloperation of the flight to Ontario,” id. at 7964 n.4 (emphasis added), is afar cry from establishing that such “diversion” endangered the aircraft.

4Even if the government were correct that a threat alone can endangerthe safety of an aircraft (i.e., without any weapon or bomb needing to bepresent), one would still need a causal connection between the threat andactual endangerment — to the mechanics or structure of an aircraft —before the enhancement could apply. The district court did not make anyfactual findings about endangerment to the aircraft, and the only testimonyfrom flight attendants indicated fear for themselves and passengers on theplane, and the passengers’ fear about the emergency exit door beingopened. Notably, the feared opening of the emergency exit door wasshown to be a nullity because there was testimony at the sentencing hear-ing that it is impossible to open a door in flight.


interference satisfied the Guideline. These questions werenever squarely raised. Instead, the briefing was gearedtowards the question of what constituted reckless conduct,and there is no indication that the court contemplated theissues addressed here, namely the definition of “aircraft” orthe specific meaning of that enhancement. See Local 144Nursing Home Pension Fund v. Demisay, 508 U.S. 581, 592(1993) (characterizing as dicta writings that were “uninvited,unargued, and unnecessary to the Court’s holdings”). Accord-ingly, Naghani is not instructive, much less controlling.

Under the majority’s interpretation of Naghani, moreover,the enhancement would apply in virtually every case of inter-fering with a flight attendant, rendering the distinction that theGuideline draws meaningless. The court there stated that “[i]fan actual emergency had arisen at another part of the plane,the distraction [based on the defendant’s conduct] would havedelayed, and perhaps prevented, an effective response by theflight attendants.”5 Naghani, 361 F.3d at 1263. Under thislogic, any interference with a flight attendant endangers theaircraft itself. If this were true, no enhancement would be nec-essary because the utmost punishment would be implied inthe offense of conviction, as the majority seems to hold.6

5It would be pointless to speculate what sort of “actual emergency” aflight attendant would be responsible for responding to, except to note thata flight attendant has no responsibility for the safe operation of the air-craft. That is the responsibility of the flight deck crew.

6To the contrary, to date, it appears to have been undisputed that endan-gering the safety of an aircraft was not an element of a violation of 49U.S.C. § 46504. To this end, it is important to note that the actual lan-guage of 49 U.S.C. § 46504, governing “interference with flight crewmembers and attendants,” covers “lessen[ing] the ability of the member orattendant to perform” his or her duties. 49 U.S.C. § 46504 (emphasisadded). Clearly, the statute thereby takes into account the lessening of aflight attendant’s ability to ensure the safety of the aircraft. See UnitedStates v. Meeker, 527 F.2d 12, 14 n.2 (9th Cir. 1975) (“We feel . . . thatwhen a defendant participates in proscribed conduct and causes a crewmember to lose his autonomy over doing what would ordinarily be his


For this reason, the dicta in Naghani (and the majority’sreliance on it) is suspect because criminal liability and punish-ment may only be imposed when the operative language ofthe statute or Guideline at issue clearly dictates that result. SeeRewis v. United States, 401 U.S. 808, 812 (1971)(“[A]mbiguity concerning the ambit of criminal statutesshould be resolved in favor of lenity.”); Bifulco v. UnitedStates, 447 U.S. 381, 387 (1980) (“This policy of lenitymeans that the Court will not interpret a federal criminal stat-ute so as to increase the penalty that it places on an individualwhen such an interpretation can be based on no more than aguess as to what Congress intended.”) (citations and quotationmarks omitted). It is well-established that “one ‘is not to besubjected to a penalty unless the words of the statute plainlyimpose it.’ ” United States v. Campos-Serrano, 404 U.S. 293,297 (1971) (emphasis added); see also United States v.Karaouni, 379 F.3d 1139, 1143 (9th Cir. 2004) (same). Suchis not the situation here.

Even if Naghani controls on this issue, the evidence pre-sented in that case was sufficient to suggest that the aircraftwas endangered, whereas it was not sufficient to establishsuch endangerment in this case. Where Naghani lit a cigarette,creating smoke, and then flushed the cigarette down the toilet,one could more reasonably conclude that the aircraft itselfwas endangered (by the danger of fire). See Naghani, 361F.3d at 1258.

United States v. Guerrero, 193 F. Supp. 2d 607 (E.D.N.Y.2002), similarly presented a case much more favorable to the

duty, a violation of section 1472(j) has occurred.”); United States v. Flo-res, 968 F.2d 1366, 1371 (1st Cir. 1992); United States v. Tabacca, 924F.2d 906, 911 (9th Cir. 1991). Accordingly, Naghani’s dicta is itself con-trary to previous decisions of this court, insofar as it read the satisfactionof the elements of 49 U.S.C. § 46504 itself as warranting the enhance-ment.


application of the enhancement. In that case, the record dis-closed:

Captain Williams testified that he had to leave thecockpit to deal with the defendant, when he learnedfrom the flight attendant that she could not handlethe situation herself. Captain Williams testified thatthis increased the risk to the safety of the aircraft,which is designed to be flown by two pilots. Defen-dant further endangered the aircraft and passengerswhen he pushed Captain Williams, because thisexposed the aircraft and crew to the danger of havingtheir captain incapacitated. Not only did CaptainWilliams testify that he thought defendant was mak-ing the flight unsafe, but his actions confirm that hebelieved that defendant was endangering the aircraftand passengers. Captain Williams testified that heonly left the cockpit when he concluded there was apotential danger to the aircraft, and, upon returningto the cockpit, Captain Williams turned the aircraftaround and returned to New York City because heconcluded that it was unsafe to continue on to SantoDomingo.

Id. at 609-10.

United States v. Jenny, 7 F.3d 953 (10th Cir. 1993), is alsodistinguishable because the captain left the cockpit to attendto the defendant’s inappropriate behavior. Id. at 955. More-over, the court in Jenny was concerned with the definition of“reckless” and did not engage in defining the precise scope ofwhat needed to be endangered in order for the enhancementto apply. See id. at 955-57. The facts also distinguish this casefrom United States v. Spellman, 243 F. Supp. 2d 285 (E.D. Pa.2003), where the pilot testified that there were additional risksand that there was “ ‘no tolerance for error’ ” in the landing


that he was caused to execute due to the defendant’s inappro-priate conduct. Id. at 288.7

All of the out-of-Circuit cases relied on by the majority —Jenny, Guerrero, and Spellman — share a common character-istic that is lacking in this case. In all of them, the pilot leftthe flight deck — the cockpit — to confront the unruly pas-senger in the passenger compartment. Here, by contrast, thepilot did not leave the cockpit; Gonzalez did not interact withthe flight crew at all. In this regard, it is important to note thatthe FAA regulations requiring that cockpit doors be rein-forced to thwart a September 11-like unauthorized entry of apassenger into the cockpit were already in place well beforethe date of this incident. See Flightcrew Compartment Accessand Door Designs, 67 Fed. Reg. 2112, 2114 (Jan. 15, 2002).As we know from the history of United Flight 93 on Septem-ber 11, 2001, it is control of the cockpit that determines, to alarge degree, the safety of the aircraft and it is in response tothose events that the new regulations requiring the strengthen-ing of flight deck doors and locks was promulgated.8 See id.

7The majority relies on these cases to state that “diversion of the air-craft, behavior that instills fear and terror in the other passengers or theflight crew, and threats that could result in harm to the aircraft are suffi-cient, depending on the combination of circumstances, to constitute reck-less endangerment of the safety of the aircraft.” Maj. op. at 7963.However, there is no evidence in this case that diversion of the aircraftendangered the aircraft, and making passengers (and even the flight crew)fearful and empty threats that cannot be carried out can scarcely be saidto endanger the aircraft any more than interference with flight attendantsalone does, under 49 U.S.C. § 46504. Tellingly, the majority immediatelyacknowledges that “simply disrupting the flight attendants and causingother passengers discomfort does not rise to the level of reckless endan-germent.” Maj. op. at 7963. What the majority fails to acknowledge, anda reason I dissent, is that this is the only kind of finding the evidence heresupports.

8Because Gonzalez did not interact with the flight crew, the question ofwhether his conduct could have been properly construed as reckless is alsoan open one, because there is no indication that he “was aware of the riskcreated by his conduct” to the aircraft. See Naghani, 361 F.3d at 1263


In this case, control of the cockpit or safety of the flight crewwas never endangered.

The majority speculates that the pilot’s flight routine was“seriously disrupted.” Maj. op. at 7962 n.3. But, again, thereis no evidence of how serious any disruption may have beenand whether such disruption endangered the safety of the air-craft. Indeed, the majority’s concession that “it may well havebeen imprudent for the pilot to have left the cockpit under thecircumstances,” id., is a virtual admission that, because theflight crew remained securely in the cockpit, the aircraft wasnot endangered.

Gonzalez’s position is further strengthened by the fact thatthe cases the majority cites are not the only cases where cir-cumstances favorable to the application of the enhancementhave appeared. See, e.g., United States v. Vickaryous, 1996WL 2773 at *1-*2 (10th Cir. 1996) (applying enhancementunder § 2A5.2(a)(2) where the defendant struck the pilot inthe jaw, causing him to have severe difficulties performing hisduties, including requiring assistance for an emergency land-ing); United States v. Bocook, 1995 WL 371250 (4th Cir.1995) (per curiam) (affirming enhancement under

(applying definition of reckless from U.S.S.G. § 2A1.4 to § 2A5.2);U.S.S.G. § 2A1.4, Application Note 1. Notably, too, the government couldeasily have attempted to meet its burden by presenting the testimony of thepilot that his performance was affected or that he believed the aircraft wasin danger, or any other evidence that the aircraft was endangered. Thegovernment failed to do so. Thus, the majority’s statements about Gonza-lez’s general recklessness, Maj. op. at 7964-65, are inapposite because anysuch recklessness did not endanger the safety of the aircraft. The majorityalso states that “[i]t doesn’t take an aeronautical engineer to recognize thata threat of a bomb in [an aircraft] environment and the havoc that such athreat might cause is a threat to the safety of the aircraft.” Maj. op. at 7964(emphasis added). Although I fail to follow the logic of this assertion, itsemphasis on “might cause” renders the speculation superfluous. Signifi-cantly, the actualization of such potential is what should have been provenin order to prove endangerment to the safety of the aircraft. It was not.


§ 2A5.2(a)(1), dealing with intentional rather than recklessendangerment, where the defendant pretended to be an airtraffic controller and gave false statements to pilots, includingas they were attempting to land). Gonzalez’s situation wasquite different from these cases, and I believe these distinc-tions should guide our decision here.

Even if one looks beyond the plain meaning of the Guide-line, the history of this enhancement also supports Gonzalez’sposition. Before 2002, as the majority mentions, the enhance-ment applied to reckless endangerment of “an aircraft andpassengers.” See, e.g., U.S.S.G. § 2A5.2 (2001) (emphasisadded). The deletion of the requirement that passengers beendangered, and the alteration of this enhancement to applyto “an airport or an aircraft,” show that this enhancement —at the time Gonzalez was sentenced — was geared solelytowards punishing conduct that endangers objects, not people.See U.S.S.G. Supplement to Append. C, amend. 637, at 234.This change was accompanied by enhanced penalties forassault and other dangers to people that may attend thesecrimes. Given these other provisions, it is all the more clearthat Gonzalez’s conduct did not come within the meaning ofthis enhancement. The overall penalties provided by theamendment were higher than before, moreover, so reading theenhancement according to its plain meaning seems quite con-sistent with Congress’ intent.9

9The commentary to the 2002 amendment recognized concern that thebase offense level provided in U.S.S.G. § 2A5.2(a)(2) was inadequate insituations involving a dangerous weapon and reckless disregard for thesafety of human life. See U.S.S.G. Supplement to Append. C, amend. 637,at 247. To sanction conduct involving mortal peril, accordingly, the Sen-tencing Commission supplemented the Guideline to provide for a mini-mum offense level of 24. See id.; U.S.S.G. § 2A5.2(b)(1) (2002). Thecommentary also indicated that the Commission was becoming more con-cerned with threats to mass transportation systems and facilities, seeU.S.S.G. Supplement to Append. C, amend. 637, at 247, which is consis-tent with my reading of the Guideline.


Because the aircraft-endangering enhancement should notapply if there is nothing more than interfering with flightattendants and potentially harming them and passengers, itwas wrongfully applied in this case. Accordingly, I wouldvacate the sentence and remand this case to the district court.See, e.g., United States v. Kilby, 443 F.3d 1135, 1140 (9th Cir.2006) (“If there was material error in the Guidelines calcula-tion, we will remand for resentencing . . . .”); United Statesv. Menyweather, 431 F.3d 692, 696-97 (9th Cir. 2005) (“[I]fthe sentence imposed resulted from an incorrect application of

Moreover, the previous iteration of the Guideline shows that the Sen-tencing Commission clearly understood aircraft and flight attendant / pas-senger safety as distinct concepts. This fact further supports Gonzalez’sclaim that the meaning of “aircraft” is unambiguous and does not includeflight attendants and passengers. See U.S.S.G. Supplement to Append. C,amend. 637, at 234. Moreover, as Gonzalez suggests, the structure ofU.S.S.G. § 2A5.2 — even disregarding the fact of the amendment — inti-mates that the Guideline does not equate endangering a flight attendantwith endangering the aircraft, because it provides a separate cross-reference to assault Guidelines when resort to assault Guidelines wouldresult in a higher base offense level. See U.S.S.G. § 2A5.2(a)(3).

Thus, the majority misreads the effects of the amendments, and misap-plies their implications to this case. See Maj. op. at 7958. That is, themajority writes that “it is now easier to invoke the sentence enhancementsbecause § 2A5.2(a)(2) does not require a showing of endangerment to thepassengers.” Maj. op. at 7958 (emphasis in original). However, endanger-ment of passengers is not relevant in this case. The question here is endan-germent of the safety of the aircraft. The majority also misunderstands theenhancement when it states, as an example, that “even if an individualthreatened to blow up an empty aircraft, he could receive an enhancementunder § 2A5.2(a)(2).” This should not be the case, because a threat toblow up an aircraft does not endanger the aircraft. Even if, moreover, “inthe case of an aircraft loaded with passengers, Congress reasonablyassumed, as would most people, that endangering an aircraft would endan-ger the passengers,” that is not what the Guideline references. Congressreferred to endangerment of the aircraft as what was required, andwhether or not Congress intended to protect passengers through the appli-cation of this enhancement, Congress did not use language that referredto passengers in its test.


the Sentencing Guidelines, and the error was not harmless,ordinarily we will remand to the district court for further sen-tencing proceedings, permitting the district court on remandto consider the proper Guidelines sentence along with othersentencing factors”).10

In sum, this case was simply a case of interfering with aflight attendant, and applying the enhancement underU.S.S.G. § 2A5.2(a)(2) here is tantamount to saying that itapplies in virtually any case under 49 U.S.C. § 46504. Thesentence imposed on Gonzalez was unreasonable because thedistrict court miscalculated the applicable Guidelines range;consequently, I would reverse and remand for resentencing.For all of these reasons, I respectfully dissent.

10Even if the enhancement could have applied to Gonzalez, he wassurely prejudiced because the enhancement was not proven by clear andconvincing evidence — to which end I note the glaring absence of any tes-timony about danger to the safety of the aircraft. See, e.g., United Statesv. Jordan, 256 F.3d 922, 930 (9th Cir. 2001) (“[I]t is evident beyond doubtthat Jordan’s increased incarceration caused by the challenged enhance-ments is prejudicial if these enhancements could not have been proved byclear and convincing evidence.”). Gonzalez also convincingly argues thatit is possible that the district court based its finding on a belief that Gonza-lez recklessly endangered only the flight attendants and/or passengers. Thegovernment made an argument that could be read to this effect, namelywhen it said that it was “first addressing the issue whether or not thedefendant was — had recklessly endangered other passengers[’] lives onthe airplane.” There is nothing in the record to indicate that the districtcourt did not share the same misapprehension of the Guideline, particu-larly in light of its failure to make any findings on this issue, and this factalso counsels in favor of remand.


for publicationcdn.ca9.uscourts.gov/datastore/opinions/2007/07/03/0510543.pdfgonzalez was indicted...

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